CIHM 
Microfiche 
Series 
(l\/lonographs) 


ICIVIH 

Collection  de 
microfiches 
(monographies) 


H 


Canadiin  Institute  for  Historical  Microroproductions  /Institut  Canadian  da  microreproductions  historiquas 


Technical  and  Bibliographic  Notes  /  Notes  technique  et  bibllographiques 


The  Institute  has  attempted  to  obtain  the  best  original 
copy  available  for  filming.  Features  of  this  copy  which 
may  be  bibliographically  unique,  which  may  alter  any  of 
the  images  in  the  reproduction,  or  which  may 
significantly  change  the  usual  method  of  filming  are 
checked  below. 


0 


D 
D 
D 


D 


Coloured  covers  / 
Couverture  de  couleur 


I     ]  Covers  damaged  / 

' — '  Couverture  endommagee 

I     I  Covers  restored  and/or  laminated  / 

' — '  Couverture  restrjr6e  et/ou  pelilculee 

I     ]  Cover  title  missing  /  Le  titre  de  couverture  mar>que 

I     I  Coloured  maps  /  Cartes  geographiques  en  couleur 

j     I  Coloured  ink  (i.e.  other  than  blue  or  black)  / 

' —  Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 

I     I  Coloured  plates  and/or  illustrations  / 


Planches  et/ou  illustrations  en  couleur 

Bound  with  other  material  / 
Relie  avec  d'autres  documents 

Only  edition  available  / 
Seule  edition  disponible 

Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin  /  La  reliure  serree  peut 
causer  de  I'ombre  ou  de  la  distorsion  le  long  de 
la  marge  interieure. 

Blank  leaves  added  during  restorations  may  appear 
within  the  text.  Whenever  possible,  these  have 
been  omitted  ft-om  filming  /  II  se  peut  que  certaines 
pages  blanches  ajoutdes  tors  d'une  restauration 
apparaissent  dans  le  texte,  mais,  k}rsque  cela  dtait 
possible,  ces  pages  n'ont  pas  6te  film^es. 


L'Institut  a  mtcrofilme  le  meilleur  examplaire  qu'il  lui  a 
ete  possible  de  se  procurer.  Les  details  de  cet  exem- 
plaire  qui  sont  peut-etre  uniques  du  point  de  vue  bibli- 
ographique,  qui  peuvent  modifier  une  image  reproduite, 
ou  qui  peuvent  exiger  une  modifications  dans  la  meth- 
ode  nomnale  de  filmage  sont  Indlques  ci-dessous. 

I     I      Coloured  pages  /  Pages  de  couleur 

I     [      Pages  damaged  /  Pages  endommagees 

I     j      Pages  restored  and/or  laminated  / 
' — '      Pages  restaurees  et/ou  pelliculees 

1^      Pages  discoloured,  stained  or  foxed  / 
' — '      Pages  d^colorees,  tachetees  ou  piquees 

I     I      Pages  detached  /  Pages  d6tach6es 

r^    Showthrough  /Transparerwe 

I     I      Quality  of  print  varies  / 

' — '      QuaWe  inegale  de  Timpression 

I     I      Includes  supplementary  material  / 
' — '      Comprend  du  materiel  supplementaire 

I  I  Pages  wholly  or  partially  obscured  by  errata 
' — '  slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image  /  Les  pages 
totalement  ou  partiellement  obscurcies  par  un 
feuillet  d'errata,  une  pelure,  etc.,  ont  6te  filmees 
a  nouveau  de  fagon  a  obtenir  la  metlleure 
image  possible. 

I  I  Opposing  pages  with  varying  colouration  or 
' — '  discotou rations  are  filmed  twice  to  ensure  the 
best  possible  image  /  Les  pages  s'opposant 
ayant  des  colorations  variables  ou  des  decol- 
orations sont  filmees  deux  fois  atln  d'obtenir  la 
meilleur  image  possible. 


n 


Additional  comments  / 
CommentaJres  supplementaires: 


This  item  is  f  ilmtd  at  the  reduction  ratio  cherkad  below/ 

Ce  document  est  filmt  au  laux  de  reduction  indiqui  ci-dessous. 


lOX 

MX 

18X 

22X 

26  X 

XX 

J 

12X 


20X 


24  X 


Th«  copy  filmtd  h«r«  hai  ba«n  raproducad  thinki 
to  tha  ganarotity  of: 

National  Library  of  Canada 


L'aiamplaira  lUmt  fut  raproduit  grlca  1  la 
g*n«roaiU  da; 

Bibllotheque  natlonale  du  Canada 


Tha  imaga*  appaaring  hara  ara  tha  baat  quality 
poaaibia  conaidaring  tha  condition  and  iagibility 
of  tha  original  copy  and  in  kaaping  with  tha 
filming  contract  apacificationa. 


Lat  imagaa  auivantaa  ont  tit  raproduitai  avac  la 
plua  grand  toin.  compta  tanu  da  la  condiiion  at 
da  la  nattat*  da  I'axampiaira  filma,  at  an 
conformitt  avac  laa  conditiona  du  contrat  da 
filmaga. 


Original  copiaa  in  printad  paper  covara  ara  fllmad 
baginning  with  tha  front  eovar  and  anding  on 
tha  laat  paga  with  a  printad  or  illuatratad  impraa- 
aion,  or  tha  back  covar  whan  appropriala.  All 
othar  original  copiaa  ara  filmad  baginning  on  tha 
first  paga  with  a  printad  or  illuatratad  impraa- 
aion,  and  anding  on  tha  laat  paga  with  a  printad 
or  illuatratad  impraaaion. 


Laa  axamplairaa  originaux  dont  la  couvartura  an 
papiar  aat  imprimaa  sont  filmte  an  commancant 
par  la  pramiar  plat  at  an  tarnKinant  aoit  par  la 
darnitra  paga  qui  compona  una  amprainta 
d'impraaaion  ou  d'illuatration,  aoit  par  la  lacond 
plat,  aalon  la  eaa.  Tous  laa  autraa  axamt.''<iras 
originaux  sont  filmAa  an  commancant  par  ■• 
pramiAra  paga  qui  compona  una  amprainta 
d'impraaaion  ou  d'illuatration  at  an  tarminant  par 
la  darniara  paga  qui  comporta  una  talia 
amprainta. 


Tha  laat  racordad  frama  on  aach  microflcha 
shall  contain  tha  symbol  — » Imaaning  "CON- 
TINUED"), or  tha  symbol  V  Imaaning  "END"), 
whiehavar  appliaa. 


Un  daa  aymbolaa  suivanta  apparaitra  sur  la 
darniira  imaga  da  ehaqua  microficha,  salon  la 
cas:  la  symboia  ^^  signifia  "A  SUIVRE".  la 
symbola  V  aignifia  "FIN". 


IMapa,  plataa.  charts,  ate,  may  ba  filmad  at 
diffarant  raduction  ratioa.  Thoaa  too  larga  to  ba 
antiraiy  inciudad  in  ona  axpoaura  ara  filmad 
baginning  in  tha  uppar  laft  hand  cornar,  laft  to 
right  and  top  to  bottom,  aa  many  framaa  as 
raquirad.  Tha  following  diagrama  illuairata  tha 
mathod: 


Laa  cartas,  planchas,  tablaaux,  ate,  pauvant  atra 
filmaa  1  daa  taux  da  reduction  diffarants. 
Lorsqua  la  documant  ast  trop  grand  pour  iira 
raproduit  an  un  saul  clicha,  il  aat  filma  1  partir 
da  I'angia  supariaur  gaucha,  da  gaucha  a  droita, 
at  da  haut  mn  baa,  an  pranant  la  nombra 
d'imagaa  nteaasaira.  Las  diagrammas  suivants 
illuatrant  la  mathoda. 


1  2  3 


1 

2 

3 

4 

5 

6 

«  CtOCOfY   RiSOlUTION   TBT   CHART 

(ANSI  ond  ISO  TEST  CHART  No   2) 


1.0    JrlS  K 

_u_  1:^  m 

^  III  1.8 


1:25    i  1.4 


1.6 


=    APPLIED  IIVHGE    Ir. 


NAl,!**'  *. 


STATES  AND  (■ANaBa 


AN  ADDRKSS 


8V 
THE  HONORABLE  VVU.IJ 


f'lAM  BENWICK  HIUDEI.I, 

■  I.    H.  D .  «TC. 

D""N.  H.  C.  J„  Ox,,, 


rOR  THK 

EIGHTEENTH  ANNUAL  SESSION 
OF  THE 

JOWA  8TATB  BAR  ASSOCIATION 


CEDABliAPIDS,10WA,Jt;x 


B  28,  1012 


THElOxNSTITl  TKINSOF  THK  UMTEH 
STATES  AND  CAXAM 


A.N  ai>i»i;kss 


TlIK   llONOUAlil.K   WIM.IA.M    KKNWK  ';    UIDDKl, 

r     M    fi  ,  KTI 

.11-  TunnvTo  (.llvri,  |.;  ,,|,    IMK  Kl\.;\   1U:\.  11 

Div'N.    II.    C.  .1..   Om.) 


KKilll'KKNTll  ANNUM.  SESSION 


UnVA  STATK  MAI!  ASSOC  lATIO.V 


I'KDAll   liAI'ins.  IcnVA.  .H'M-;  -M.  11112 


THE  CONSTITLTIONN  (  y  TMIO  I'XITKD  STATKS 
AND  CANADA 


The  other  d«>,  in  «  train  leavii-g  Toronto  I  o'  erhear.1  «n 
e»:-neit  voiee  uyin^  -Hut  that  .•aii't  h..  oon.titu'ional-the 
Sopreme  Court  will  up*t  that."  I  at  „u,-..  «id  to  ,.iv«elf. 
lh«t  I.  an  Awerinin  .penkinK'-for  in  my  anaociation  with 
.mzen.  of  thi.  favoured  land.  I  hav,.  loun.l  that  «  great  part  of 
their  time  an  :  the  time  of  their  eourt.  i.  taken  up  in  the  di.- 
cuMion  of  the  constitutionality  or  unconatitutionality  of  enaet- 
menta  of  their  legialative  hodiea. 

In  Canada,  on  the  other  hand,  we  very  seldom  find  it  neeesaary 
to  mention  the  Constitution  at  all.  It  i.  a  somewhat  eurious 
circumstance  that  two  neighliourini,  peoples  of  the  same  origin 
the  same  tongue  and  religion,  kindred  aspirations  and  identical 
views  of  justice  and  right  should  differ  so  much  in  their  concep- 
tion of  a  constitution;  it  is  I  think  unparallele.1  in  history  In 
the  ultimate  analysis  the  difference  arises  from  the  fact  that  the 
father,  of  this  Union  of  States  knew  how  to  write;  and  that 
having  the  power,  they  had  that  desire  to  reduce  their  views  to  a 
written  form  which  characterizes  the  philosopher. 

In  the  mother  country,  the  philosophic  students  of  the  proh- 
lema  of  politics  gave  written  expression  from  time  to  time  to  their 
views  also-but  these  students  differed  from  those  philosophers 
in  that  they  had  no  power  to  cause  their  writing  to  be  adopted 
as  a  binding  document.  No  more  profound  studies  have  ever 
been  made  in  the  theory  of  government  and  concerning  the  bal- 
ance of  function  of  its  various  departments  than  those  of  English- 
men-but  Englishmen  could  give  them  only  as  speculations,  they 
had  not  the  power  to  have  t  -ir  theories  adopted  by  the  Nation 
at  large. 

The  fathers  of  this  Nation,  when  they  had  drawn  from  English 
and  other  sources  what  they  conceived  to  be  the  true  principles 
upon  which  government  should  be  carried  on,  went  further  and 


I 

i..n,ml„t,.,|  ,h..,r  thfoh,.,  i„  „  ,|,„.„„„,„  ,>„„„.,,  „|„,  ,„„,.,,  .i,.,,  ^ 
"■"'  <>"'y  l»"l  '!"■  r-rtu..,.  I„  h„v,.  fl„„  .|,„.„„„.,„  ,„„„,  ,,i„,|i 

"P..M  n.,  u„l.v, I,,.  N„,i,,,,  ,,.  i,  ,,,,.„  ,.,iM,.,l.  1,,,,  ,,!,,  ,,,„,,,  J 
.Nati...,~»,„.„k,nK  u.'M.Tall.v    -,„  i,  „„„  ,„  ,„.  ,„  „ „,,  ,„.  ,.„,,, 

.\n,l  .1,,,  „  „l,,  ,1,,.  «„r,l.  ■v„„.,i„„i„„-  ,„„|  ■■,.„„.,it,„i„„„|" 

iNiv,.  MII..I,  ,|i(r,.r,-MI  .omiotalioiji.  in  !'„.  i,v uiilri... 

In  III,.  r„il,.,l  SNitr,  ,!„■  CnnMtiluti,,,,  i»  „  vvritt,.,,  ,l,„.MM».„t 

""''""»-•  "'"">  l.'l>.-rK  ,,,.,1  „„r,l,  .,„„i  „„,vihi.,K  «l,i,.|,  i,  in 

a.-"r,l   »,lh  tlial   ,l,«-u„„.|,t   i,  ,.„„„i„„i„„„i.      |„   |.;„^|„„,1   ih,. 

<  un,t„„nn„  „  ,1„.  ,,^n;n„.  „r  ,1 ,n.  „r  I.™  v„„,..  „,„1  „„. 

-rt.nn  |,r,M,.„,l,.,  „|,.,n  »l,i,.l,  ,|„.  „«.„;„  ,„■  „,„„  ,,„„  , „  ^^^ 

''"■'■"'"'■'■  »'"•"'''  '"•■  "'l'"i.""..-n..l.     For  ,.x,„ i„  ,|„,„ry  ,|„ 

Sm,.n.,«„    ,„.  ,|,„  ri«l„  ,  .  r,.fu„.  ,„  „»„„„,  „.  „  i,,,,  „.,,i,,h  ,,„. 
p.."...    I....I,  ll„u.,.H  „f  r;„.|i„„„.„,.     N„  S,.v..n.iK„  »imv  Que.- 

An.,..  I,„„  v,.„n,r,.,l  .„  ,1 i,_„„.i  ,|,e  „,,„re.i<.«l  ri^t  i.  .I,«i 

"»  tin,,.,,  Ann,.  I„.n.,.ir.     No  SoverH^n   wm.1,1   now  ,ir,.a,n  of 
»-tMnK  up  hH  will  „Kain,t  that  of  lii.  I'arliament-io  ,lo  »> 

"■'""''  "1'. •"""•i"''i""«l-     '""  rher,.  „r..  ,„„n,-  part,  nf  the 

I  institution  l.y  m.  rn,.«n»  m  wdl-wttld.  If  Hv,.  warn  ai{n  a 
»tal,..srn„n  „r  liiwy.r  l,a,l  l„...n  ».k,.,l  uliotluT  th.  II„uk  „f  rid. 
.-..uld  n.j..,.t  a  l,u,lK,.t  p„™ed  by  the  C.muu.n..  he  would  have 
anHw. .«!-•■  The  House  of  Lord,  no  douht  can,  hut  it  will  not  " 
It  «■„  thought  hy  many,  if  not  all.  that  ,u,li  „n  exen^iae  of 
power  hy  the  lou..  of  Lord,  would  he  „a  uneon.titutional  a, 
he  refu«.  ot  the  Sovereign  to  a»,ent  to  a  hill.  And  yet  wo  know 
that  the  House  ol  Lords  ,lid  recently  „s«.rt  jii.t  aueh  a  power- 
ami  we  hav,.  not  yet  heard  the  last  of  the  result,.  Apparently 
the  last  hKht  ot  entrenehed  privilege  in  Ilritain  a«ain«  the  in 
sistent  demands  of  demoeratie  fn-em-.n  ha.  just  been  fought. 

-titufonal?  the  answer  eannot  he  Riven  by  referenee  to  a  doeu- 
ment  an,l  ,f  neees^iry  to  a  eourt  to  determine  the  meaning  of 
the  doeument-but  it  i.  the  electorate  who  are  asked  for  the 
answer. 

"Littera  seripta  manet";  the  American  mav  say,  "I  stand 
upon  the  letter  of  the  Constitution :  lot  the  heathen  ra^e  and  the 
people  imagine  a  vain  thing." 

And  does  all  this  not  show  that  the  fathers  „f  the  Union  had 
not  eonhdence  in  the  wiriom  and  ju,tiee  of  the  people-the  elec- 


ra.,.,      U,...v  „,.r,    ,„„  ,.,„„,„,  ,„  |..,„,,.  ,„  ,|,^ 
""•'•  "■";•"'";■»"  ""■  r -  - ..n,r.v  ,„  „.,„„  ,l„.v     ,h,.l 

•"■";■'"• "''•"■■■i»-i-. -in.M,ii,.  „m,  V,,.,".  ,;„;, 

c::^? '■■"■  ■'• -'"" -.i...,...,;,,,,  ..,■„:,■.,;: 

pt»t.-  "1   A„„.n.„  ,m.  K„„.,.„,.,|.  i„  ,,„rt  „„|, ,,,  ,|„.  |„.„i,. 

"'-.,  ...,.,..„  ,,,  „,..,„.„,v,...  ,„„  „. , ,i.„^„  ,     2 

liiiMil  iin.l  viii,-,.  i.r  Mil'  ilniil. 

,,  -V,"' "'.'"  '"  ' '"'•' •'  "'»"  < '■<■       !.■  :.  I...„...  .„. 

•  """  """■'"" "•  i"  "  ""V.r, ,„  ,„•  ,„„  ,„„|  „,„  ,„•  ,„.,„ 

>M.or..v,.r  tl„.,v  ,»  „  „rilt,.n  (  nn.tili.ti,,,,  limiting  ,1,..  ,„,„„„  ,„; 
''■",'"':""■;■  "'"'  '•^•"■"li- -IHT,.   , ,  ,„•  , ..,  i,     " 

":;;;''"• '"  ■■'■■ •>■ •  <"'"'""<  -  .ih .in,. ,., „„i,„. 

,      "  ' '","""  '"  ■• "  'li'l"".-.!,,..  .ril,„„„l  ,.„„l,l  ,„„  „,.|l 

"«;n  power  u,„l,.,.  „  „n.t,.n  Cnn-li,,,,;,,,,  ,,v  I      ,„n.  „r  Kx,,.' 

"<.v.  ..,,.,.„«  ,,r„„n.v.  M,.it.„.ror  „l,i,.|,  ,1„.  A,  „,o.S„,„„  ,.„„  ,„,„. 

..  '"  "'•'  '■" '''"••  '"■"""<■   '!"■   IMrl nt   i,  „h, „.,v   ,V,.; 

I  no  pmviT  ot  |-,wli„„„.„|  i„  »,  tr„„»,.,.n,i,.nt  ,„„1  „|„„h,t,.  that  it 
-■..nnot   .,..  ,.„„Hn„„,  .,„„  for  ,.„,.„.«  „r  p,.™.„„.   within  1 
l-"un<l,.     It  hn»  «ov,.r..i«n  „n,i  ,.„,.„ntroll„M,.  „„thoritv  in  V- 
nmkmK,  •■onirunn,,  „„h,a.in«.  r,.stn,tin«.  ahr,.„„ti„„.  r;,„.„|in 
rev.v,„K  an.1  .xponn.iin.  of  ,„„•,  ...,„,,r„i„,  ,„„,„.„  „,  '„,:.■ 

1  '  r:""""""""-       '■■''"  """ "'  "f  "'"'•'<"">"•■  "'""k  1   «t 

™  affirm.,,  hy  ,h,>  J„.|i,.ia,  f,,,,,,,,,,,,.,  „,■  ,„„  ,.,],,  ^^^„„     ,  ' 

th,    ntimat,.  app,.lla„.  trihnnal  in  ,)„.  K,„pir„.  k|„  ,„,^    j,/ 
V.  Cohalf  (IfMW..  IH  o.  U.  ,i.  27.-,,  „l  p.  27!). 
••It  is  a  fumlaraental  prin.ipl.  with    English   lawv.n,  that 

ri  """r  ■.''"•^■'  "'■''"'""■■  "'^"  '^'■'  "f  ''»'li«'"™»  <•«..  Ho 
no  wmnp.  though  ,t  ,„ay  do  sevral  things  that  look  pretty  odd" 

2  Mod.  m  „  6S7,  688.  Sir  Kdward  ('ok,,  who  advanc-ed 
th,.  propoa,t,„n  ,n  Ronha.n's  ,.„h,..  8  Co.  118  (a,  that  "The 
common  law  will  control  Acta  of  Parliament,  and  «ime,imea  ad- 


judge  them  to  be  utterly  void"  was  properly  rebuked  by  Lord 
Ellesraere,  Note  Id  Thomas  &  Eraser's  edit,  of  Coke's  Rep.,  Vol. 
4,  pp.  376,  377  (see.  too,  what  Coke  says  as  to  the  Acts  of  Parlia- 
ment against  natural  equity  in  Co.  Litt,  sec.  212).  "This  dictum 
once  had  a  real  meaning  but  it  never  received  systematic  ju- 
dicial sanction  and  is  now  obsolete.  ...  A  modern  judge 
would  never  listen  to  a  barrister  who  argued  that  an  Act  of 
Parliament  was  invalid  because  it  was  immoral  or  because  it 
went  beyond  the  liiriits  of  parliamentary  authority."  Dicey's 
Law  of  the  Constitution,  7th  Ed.,  p.  59,  note  (1),  pp.  60,  61. 
The  words  of  the  Legislature  are  the  text  of  the  law  and  must 
be  obeyed",  per  Hamilton.  .J.   (liilli,  1  K.  B.  at  p.  1101. 

Nor  is  there  any  delinite  llie  of  decisions  in  America  before 
the  lievolution  in  the  opposite  sense. 

No  doubt  the  Colonial  Courts  in  considering  the  Acts  of  Par- 
liament of  the  mother  country  strove  to  make  what  they  con- 
sidered to  i-e  right  and  justice  override  certain  of  the  statutory 
provisions.  But  it  cannot,  I  think,  be  said  that  any  court  in  the 
English  Colonies  went  so  far  as  to  say  that  there  was  a  limit  set 
to  the  power  of  the  home  Parliairient  by  any  natural  or  inherent 
right. 

The  South  Carolina  case  of  Bowman  v.  Jliddleton  (1792), 
1  Bay  252,  did,  indeed,  decide  that  an  act  of  the  Assembly 
passed  in  1712,  which  purported  to  transfer  the  fee  in  certain 
land  from  the  heir-at-law  to  another,  was  null  and  void  "as  it 
was  against  common  right  as  well  as  against  Magna  Charta  to 
take  away  the  freehold  of  one  man  and  vest  it  in  another. ' '  But 
this  decision  by  no  means  Impugned  the  power  of  the  home 
Parliament  to  do  what  the  Colonial  Assembly  had  tried  to  do; 
and  is  simply  in  substance  a  decision  that  the  Colonial  Assembly 
had  not  the  power  to  repeal  Magna  Charta. 

No  other  case  went  so  far  as  to  declare  any  statutes  invalid  as 
against  natural  right— although,  indeed,  there  are  many  obiter 
dicta  which  indicate  that  certain  very  learned  judges  held  the 
opinion  attributed  to  Coke.  In  the  case  of  Winthrop  v.  Lcoh- 
niere,  in  1727-8  mentioned  in  Thayer,  pp.  34  sqq.,  their  Lord- 
ships of  the  Privy  Council  advised  His  .Majesty  to  declare  an 
act  of  the  Assembly  of  the  Colony  of  Connecticut  in  respect  of 
land  of  intestates  null  and  void  as  against  the  common  law  of 
England,  but  that  was  to  be  an  exercise  of  royal  prerogative. 


The  act  (M-:n,  Vic.  f.  H)  which  constituted  the  Dominion  of 
Canada  has  in  the  preamble  the  following :—"  Whereas  the 
Provinces  of  Canada,  Nova  Scotia,  and  New  Brunswick  liave 
expressed  their  desire  to  be  federally  united  into  one  Dominion 
under  the  Crown  of  the  United  Kingdoms  of  Great  Britain  and 
Ireland,  with  a  constitution  similar  in  principle  to  that  of  the 
United  Kingdom".  This  preamble  correctly  seta  out  the  <lesire 
of  the  British  North  American  Provinces  and  correctly  indicates 
the  result  of  the  British  North  America  Act.  Our  Constitution 
is-  similar  in  principle  to  that  of  the  United  Kingdom. 

It  is  true  that  there  are  modifications— as  there  must  needs  be 
wlicre  more  than  one  body  is  intendc<l  to  Icfrislate  with  absolute 
autiiority  within  tlie  same  territory.  The  Dominion  Parliament 
was  intended  to  hiivc  unlimited  power  (in  respect  of  certain 
matters)  within  Canada  generally;  the  Provincial  Legislature 
unlimited  power  (in  respect  of  certain  other  matters)  within 
the  particular  Province.  The  determination  of  objects  of  legis- 
lation of  Dominion  and  Province  must,  of  course,  be  in  writing ; 
the  division  appears  in  sections  91  and  92  of  the  British  North 
America  Act.  To  this  e.\tent  there  is  a  written  Constitution  for 
the  Dominion  of  Canada  and  the  courts  have  been  called  upon 
to  interpret  the  British  North  America  Act  and  thereby  to  de- 
termine the  power  of  Dominion  or  Province  to  legislate  in  respect 
of  some  specific  matter. 

It  has  been  said  by  an  American  writer  that  in  Canada  the 
word  "unconstitutional"  has  a  meaning  corresponding  to  its  use 
in  the  United  States.  This  is  an  error.  We  use  the  word  in  the 
same  sense  and  with  the  same  connotation  as  in  the  Old  Land. 
Careful  speak,  rs  and  writers  use  the  phrase  "ultra  vires"  for 
"unconstitutional"  in  its  American  meaning;  "intra  vires"  for 
"constitutional". 

But  while  the  Dominion  and  the  Province  have  a  restricted 
list  of  subjects  upon  which  they  may  legislate,  and  they  can  do 
nothing  outside  these  limits  so  set.  still  when  acting  within  these 
limits  they  have  "plenary  powers  of  legislation  as  large  and  of 
the  same  nature  as  those  of  Parliament  itself."  So  said  the 
Judicial  Committee  in  Reg.  v.  Borah  (1878),  .3  A.  C.  889,  at  p. 
904.  Within  the  limits  of  subjects  and  area  the  Legislatures  arc 
supreme  and  have  "the  same  authority  as  the  Imperial  Parlia- 


ment."  Hodge  v.  Keg.  (1883),  9  A.  C.  117,  132.  In  a  judgment 
m  Smith  V.  London  (1909),  20  O.  h.  R.  133,  at  p.  137  I  put  it 
thus:-' 'The  powers  of  the  Legislature  of  the  Province  are  the 
same  in  intension  though  not  in  extension  as  those  of  the  Im- 
perial Parliament.  The  Legislature  is  limited  in  the  territory 
in  which  It  may  legislate,  and  in  the  subjects:  the  Imperial 
Parliament  is  not— that  is  the  whole  difference  " 

And,  where  the  particular  subject  of  legislation  is  not  men- 
loned  in  the  lists,  the  Dominion  has  the  power-the  residual 
legislative  power,  which  in  the  United  States  rests  in  the  States 
18  in  Canada  in  the  Dominion. 

Before  speaking  of  special  acts  of  legislation,  I  might  be  al- 
lowed  to  say  a  word  or  two  as  to  the  Executive 

The  head  of  the  United  States  is  elected  from  time  to  time 
His  powers  are  analogous  to  those  possessed  many  years  ago  by 
the  King.     He  selects  his  own  ministers,  and  they  are  his  min- 
I8te,-s  subject  to  dismissal  at  his  will-it  is  his  policy  which  they 
must  carry  out  and  they  may  safely  defy  public  opinion  so  long 
as  they  have  his  approval.    In  Canada  the  head  of  the  State  is 
the  Governor-General,  or  in  the  Province  the  Lieutenant-Gov- 
ernor,  representing  the  King;  he  must,  however,  take  such  min- 
isters  as   he  Parliaments  say-the  ministers  must  have  the  eon- 
fidence  of  Parliament  and  the  approval  of  the  Governor  is  as 
naught  compared  with  that  of  the  House.    The  King,  i   e    the 
King  a  representative,  must  carry  on  the  affairs  of  the  country 
through  ministers,  and  he  can  do  nothing  himself.    If  he  would 
dismiss  a  minister  he  must  find  some  other  minister  who  will 
take  the  responsibility  of  advising  this  dismissal  and  obtain  the 
support  o   the  House  in  such  advice^r  if  he  cannot  obtain    he 
support  of  the  House,  he  must  be  able  to  obtain  the  support  o 
a  new  House  upon  an  appeal  to  the  counto-.    We  do  not  have  the 
fixed  and  set  periods  for  the  election  of  our  legislators  which  are 
eharaeteristic  of  the   United   States  system.     Whenever  it 
thought  advisable  by  the  government  of  the  day  to  take  the 
opinion  of  the  electorate,  the  Governor-General  or  Lieutenant- 
Governor,  as  the  case  may  be,  will  direct  an  election-or  if  he 
re  uses  to  direct  an  election,  he  must  find  an  administration  who 
will  take  the  responsibility  of  advising  refusal-and  such  ad- 
m.ui,trat.on  must  find  support  in  the  existing  House-or  upon 


«n  eleotion,  if  that  administration  goes  to  the  country.  It  is  true 
that  the  life  of  a  Parliament  is  in  Canada  limited  to  live  or  (in 
the  Province)  four  years— but  that  is  by  a  statute  of  Parliament 
Itself,  and  the  same  Parliament  may  extend  or  shorten  the 
perTo.1.  It  is  seldom  that  any  Parliament  lives  out  its  statutory 
life— generally  a  favourable  opijortuuity  offers  to  take  the  opin- 
ion of  the  electorate  on  some  more  or  less  important  question 
No  one  can  tell  a  month  in  advance  when  an  election  will  take 
place.  Then  the  ministers,  who  arc  rigidly  excluded  from  the 
Legislatures  in  your  system,  not  only  may,  hut  they  must,  have 
a  seat  in  the  Legislature  in  ours. 

There  is  a  marked  difference  in  the  relative  importance  of  the 
two  houses  of  Parliament  in  Canada  and  the  two  houses  in  the 
Provincial  Legislatures  (where  such  exist)  on  the  one  hand 
and  the  two  branches  of  Congress  or  State  Legislatures  on  the 
other.  This  may  be  in  part  due  to  the  fact  that  members  of  the 
Senate  in  the  United  States  are  elected  for  a  limited  term,  while 
in  Canada  Senators  are  nominated  by  the  Governor-General, 
1.  e..  by  the  administration  for  the  time  being  in  power  at  Ot- 
tawa, and  Legislative  Councillors  who,  in  the  two  Provinces 
which  have  second  chambers,  correspond  in  the  provincial  field 
to  Senators  in  the  Dominion,  are  nominated  by  the  Lieutenant- 
Governor,  i.  e.,  by  the  local  administration  (we  have  only  two 
Provinces  which  have  a  second  chamber  in  their  Legislatures  and 
have  found  the  monocameral  system  to  work  well). 

It  is  the  House  of  Commons,  the  Legislative  Assembly,  which 
counts  in  Canada— the  Senate,  the  Legislative  Council,  is  but  the 
fifth  wheel  to  the  coach.  The  case  is  rare  in  which  the  second 
chamber  ventures  to  defeat  a  bill  pa.«cd  by  the  popular  and 
elected  House,  this  happening  only  shortly  after  the  advent  to 
power  of  a  new  administration  of  a  different  party  from  its 
predecessor. 

If  the  Senate  of  the  United  States  were  to  omit  to  defeat  an 
administration  measure  now  and  then,  "chaos  (or  is  it  cosmoaf) 
were  come  again".  In  the  case  of  a  clash  between  the  houses  in 
Canada  the  Senate  must  necessarily  give  way  in  the  long  run  to 
the  popular  House-not  so  in  the  United  States  where  Senate 
and  House  alike  are  elected. 

Perhaps  the  most  striking  difference  in  the  two  systems  iri«es 


from  the  fact  that  your  President  ia  elected  for  a  fixed  term  as 
are  your  IeK.,lators  A  President  may  be  universally  dialiked 
and  distrusted,  but  short  of  impeachment  there  is  no  way  of  re 
mov,„«  h.ra-wi,h  us  if  the  Prime  Minister  (who  and  not  the 
Oovernor-General  corresponds  in  faet,  if  not  in  theory  to 
your  I  re.sulent)  loses  the  confidence  of  the  House  of  Commons 
e  must  res>,n.  He  may,  indeed,  if  a  new  election  be  Jan  ed 
^ra  su«.eed  m  obta.ning  at  such  election  a  majority  in  the 
House  o  Commons:  ,f  so  he  is  s«yed-b„t  he  must  haye  the 
House  at  h,s  back  or  step  out  and  make  room  for  another  So 
in  the  Proyinces  in  like  manner. 

1  shall  now  giye  a  few  examples  to  shew  how  in  practi,,.  the 
written  Constitutions  in  the  United  States  haye  hampered  the 
free  action  ol  legislation,  with  illustrations  from  our  legislation, 
The  Pederal  Constitution  provides  that  no  State  shall  pass  any 
law  impairing  the  obligation  of  contracts-this  provision  ha  ad 
tar-reaching  elTects.  A  charter  granted  for  a  college  e  g  i^ 
considered  a  contract.  For  example,  in  1769  the  King,  Ceo'rge 
HI,  granted  to  the  Trustees  of  Dartmouth  College  in  New 
n  t  tmr  \T1:  i  ■--P""'-  -  a  private' eharitab,: 
h  State  fV^  Revolution-in  1816-the  Legislature  of 
he  State  of  New  Hampshire  passed  an  act  taking  away  from  the 
trustees  the  government  ol  this  college  and  vesting  iT  he 
executive  of  the  State-in  other  words  changing  the  college  from 

TriZ  '°  "  "'*^  ''"'"'"*'""•  ^"^  "'''  """^  eontin^^g  th" 
trustees  as  a  corporation  as  Trustees  of  Dartmouth  University 
purported  to  form  a  new  body  called  a  Board  of  Oye™eer  of 
«-hom  the  President  of  the  Senate  and  the  Speaker  of  rHouse 
of  Representatives  of  New  Hampshire,  the  Gove^or  and  Lieuten 
ant-Covernor  of  Vermont,  were  ex-officio  members-and  To  h^ 
Board  of  Overseers  was  given  the  power  of  confirming  or  vetoing 
?:^;'  I"^  'T'^  ^^""-«  '"  '"^  appointment  a'nd  remola! 

tin  oTir  •  "'?  "•  "'"'  P""""^'"  "^''"^  th^  determina- 
tion of  their  salaries,  the  establishment  of  professorships,  the 
erection  of  new  buildings,  etc.  The  Legislature  later  on  in  th 
same  year  passed  another  act  making  it  an  offence  for  any  one 
to  act  as  president,  professor,  etc.,  except  in  conformity  with  the 
act  just  named  One  Woodward  had  been  Secretary-Treasurer 
of  the  corporation  before  the  passing  of  the  acts,  but  he  appr,' 


en.ly  took  s.des  ,v,th  the  Legislature  (since  l,e  was  removed  by 
the  Trustees  of  Dartmouth  College  before  the  last  aet)  and  he 
was  r,..appointed  by  the  Trustees  of  Dartmouth  University  organ- 
ise,.! under  the  new  acts.  The  old  board  bro„ght  an  action 
ag,.nst  h.m  tor  takmg  possession  of  the  books  of  their  records. 
It  will  be  seen  that  the  simple  question  was:  Had  the  new  cor- 
poration of  Trustees  of  Dartmouth  University  any  power?  And 
that  depended  upon  wl„.ther  the  acts  of  the  i;gislature  were 
alid  The  Supre.ne  Court  of  New  Ilampshiro  decided  that  the 
Legislature  had  not  exceeded  its  authority,  and  so  dismissed  the 
action:  and  an  appeal  was  taken  to  the  Supreme  Court  of  the 

?'  .''IT'  '^'"  """'-■  ''"'■  ""-'  "'''  '"•"■■J  "■''«  '"■*-"«''l  !»•  the 
celebrated  Daniel  Webster  and  the  Wupreme  Court  decided'  that 
the  charter  was  a  contract.  The  Chief  .lusti...,  the  «cll-k„own 
John  Marshall,  says  -It  can  require  no  argument  to  prove  that 
the  circumstances  of  this  case  constitute  a  contract.-  Then  the 
court  proceeded  to  hold  that  this  charter  was  a  contract  of  the 
kind  protected  by  the  Constitution,  and  that  the  Legislature  had 
no  right  to  change  it  in  any  miv. 

In  I'pper  Canada  a  Roy'-I  ciiartcr  was  obtained  from  (Jeorge 
\  m  82,  or  the  University  of  King's  College  at  or  near  the 
own  01  York  (now  Toronto.,  It  contained  provisions  that  the 
(.overnor  should  be  Chancellor,  the  Anglican  Bishop  of  Quebec 
.shouUi  be  the  Visitor  and  that  the  Archdeacon  of  York  should 
be  I  resident  by  virtue  of  their  offices,  that  all  members  of  the 
Council  should  be  members  of  the  Church  of  England  and  Ire- 
land,  and  that  students  in  divinity  must  also  take  the  same 
oaths  as  were  required  at  Cxford,  The  Legislature  of  Upper 
Canada  in  18a7  took  away  the  visitorship  from  the  liisliop  the 
presidency  from  the  Archdeacon  an,l  alwlishcl  all  n.li-ious  tests 
whatsoever. 

That,  however,  was  nothing  to  what  was  done  twelve  vcars 

ater-in  1849  much  of  the  charter  ,vas  repealed  and  amended. 

he   whole  constitution   was  changed,   the  name   became  -The 

niversity  of  Toronto",  the  Chancellor  elective,  and  he  was  not 

to  la.  an  c..clesiastic.  a  minister  of  any  faith.    The  President  was 

to  he  appointed  by  the  Provincial  Administration,  th,.  facultv 

of  divinity  was  abolished,  a  Senate  formed.  an,l  the  property  of 

the    L niversity    vested    in   a    new    board.      No    donbt    King's 


College  »a6  a  .mall  eolleRe  and  ha.l  thosr  who  loved  her  h„t  no 
dramatic  elo<|uenee  even  of  a  Daniel  Webster  would  have  in- 
duoed  a  Canadian  eoiirt  to  hold  that  the  Legislature  had  ex- 
ceeded its  powers  in  such  legislation.  And  many  such  instances 
are  to  be  found,  for  example  in  New  Brunswick-"  the  Univer 
sity  of  New  Brunswi,.k"_in  Nov,,  Scotia,  and  elsewhere.  So  i„ 
the  Dominion,  but  the  present  year,  the  relation  of  the  Queen  s 
University  to  the  Presbyterian  Ciuirch  has  been  radically 
chan^'cd.  ^ 

In  the  provision  that  no  State  may  pass  a  law  mpairing  the 
obligation  of  contra.ts,  ••contracts"  is  considers  a  verv  ex- 
tensive and  comprehensive  term.  When  the  State  of  Georgia 
had  granted  certain  land,  this  grant  was  called  a  '•contract" 
by  the  Supreme  Court  (Fletcher  v.  iVck,  6  Cranch  87.  136)  and 
an  act  of  the  State  Legislature  annulling  the  grant  upon  the-  ex- 
pressed  ground  of  fraud  was  held  to  be  unconstitutional.  In 
Canada  no  one  doubts  that  the  decision  would  have  been  the 
other  way.  In  1837  and  3899  certain  water  rights  were  given  on 
and  near  the  Kaministiquia  River  to  one  J.,  these  were  in  1902 
taken  away  from  him  and  restored  in  1904— all  bv  the  Pro"ince 
of  Ontario. 

After  a  State  has  agreed  to  grant  lands  to  a  companv  upon 
conditions,  and  the  grantee  has  fulfilled  the  conditions"  of  the 
grant  and  so  earned  the  lands,  it  is  not  competent  to  pass  further 
legislation  that  the  lands  shall  not  be  ..onveyed  to  the  company 
except  upon  a  further  condition:  De  Oroff  v.  St   Paul  &e  R   R 

f  ,;f  J*' n"L"*-  '"  °''*°"'''  "  '''''■•'"'"  ™"'P'"'y  '■l«i'°"l  to  ha^-^ 
fulhlled  all  the  conditions  necessary  under  the  statute  to  entitle  it 
to  the  grant  of  certain  mineral  rights.  The  Oovernment  disputed 
the  right  of  the  eomj.any :  and  made  a  sale  of  these  rights  to  an- 
other company.  An  action  was  brought,  hut  pending  the  action 
legislation  wa«  passed  declaring  the  latter  companv  entitled  The 
action  oame  on  for  trial  before  myself  and  I  declined  to  pass 
upon  the  question  whether  the  requirements  of  the  statute  had 
been  fulfilled  by  the  original  company,  as  I  considered  this  quite 
immaterial.  7  held  that  even  supposing  the  first-named  company 
owned  the  land,  the  Legislature  had  the  power  to  take  it  away 
«.d  give  It  to  another.  This  view  of  the  law  was  approved  bv 
the  Court  of  Appeal,  and  the  Judicial  Committee  of  the  Privi- 
Council,    The  following  language  was  used : 


"If  it  Ix- that  the  plaintiffs  acquire'!  any  rights  ...  the 
Legislature  had  the  power  to  take  them  away.  The  prohibition 
•Thou  Shalt  net  steal'  has  no  legal  foree  upon  the  sovereign 
hody":  Florence  v.  Cobalt  (HH)8).  IS  ().  L.  H.  275.  This  de- 
cision made  some  eominotion :  and  it  was  attacked  by  some  who 
should  have  known  letter.  They  based  their  attack  chieHy  on 
the  provisions  of  Magna  Charta-not  knowing  or  not  appre- 
ciating  that  a  British  Legislature  has  the  power  to  repeal  even 
Magna  Charta  so  far  as  it  affects  the  territory  subject  to  such 
Legislature-and,  indeed,  most  of  Magna  Charta  is  repealed  in 
Ontario:  Smith  v.  London  (1909),  20  O.  L.  K.  at  pp.  140,  141. 

An  agreement  by  a  State  Legislature  to  bind  its  owk  hands 
by  a  grant  so  as  to  preclude  it  from  exercising  its  sovereignty 
in  that  regard  in  the  future  has  l>een  held  by  the  Supreme  Court 
to  be  valid  in  certain  cases  of  taxation  and  exclusive  privileges. 
Whether  the  police  power  can  be  ti'us  alienated  is  a  different  and 
a  difficult  question.  But  in  Canada,  "the  Legislature  has  no  pow- 
er  to  control  by  anticipation  the  actions  of  any  future  Legislature 
or  of  itself":  Smith  v.  London  (1900),  20  O.  L.  R.  at  p.  142. 

I  have  already  indicated  the  powers  of  a  Canadian  Legislature 
in  respect  of  private  property.  It  may  be  said  broadly  that  a 
Provincial  Parliament  has  the  power  to  say  that  Blaekacre,  now 
the  property  of  A,  shall  hereafter  be  the  property  of  B— and  so 
it  will  be— and  that  without  the  necessity  of  making  corapensa- 
tion.  The  whole  learning  as  to  eminent  domain  is  of  no  interest 
in  Canada.  The  Legislature  may,  indeed,  direct  compensation 
to  be  paid ;  but  that  is  in  no  sense  necessary. 

In  many  jurisdictions,  e.  g.,  New  York,  Michigan,  Alabama  it 
has  been  considered  that  the  State  cannot  authorize  owners' of 
mill-pnvileges  to  expropriate  the  land  above  to  increase  the 
head.  In  Ontario,  we  have  long  had  such  legislation,  and  no  one 
has  doubted  its  validity.  Compensation  is,  indeed,  directed  to  be 
paid:  but  that  is  not  at  all  necessary  for  the  validity  of  the 
statute. 

A  statute  of  New  York  authorized  any  person  to  take  into  his 
custody  any  animal  trespassing  upon  his  lands  and  give  notice 
to  the  justice  or  a  commissioner  of  highways  of  the  town,  who 
should  proceed  to  oell  the  animal  after  posting  notices.  This  was 
held  invalid  in  Rockwell  v.  Nearny,  .35  N.  Y.  307.    In  Ontario 


take  itt  the  nthli  "  ."  "  ''"~'  ™"'  P'"'  ""■•  '■"  ""y  "ther 
' ,  ,,"  "•  "■."  P"""''"  pound  .,r  r,:tain  it,  giving  noti™  to  the  elerk 
o  the  ,nun.e,pa,ity.  After  oert.in  notiee,  the  an  ,n«I  may  t 
»>ld  If  not  redeemed  op  replevin,,!. 

The  State  Legislature  .annot  authorize  the  eo,u,,ul8orv  et 
.ngu,ahment  of  ground  rent,  on  p„,.,„.,„t  „f  a    Z^^r^'. 

and,  «h  ch  had  heen  m  the  p„H,os»i„n  and  ownership  of  '•Pro 

Trea.,r.v  h.  the  «.::,„::;  "o'f  i"!:.:^:"^!;:;  t 

™mra.s„oner,.  Vhis.  i„de,.d,  i,  not  unlike  "eminent  d  main  • 
-ee  the  act  i,  p„a,„„  ,,,  ..,„„  „„„„„,„,,„,  .n/h^  ~„' 
•h«  peope"  and  there  waa  "no  reasonable  hope  of'^'LePrl 
pnetors  "voluntarily  selling  their  Township  lands  ,„  the  GoT 
ernment  at  moderate  prices."  ""us  to  tne  Oo>- 

In  Quehe,.  from  the  first,  the  l„„d  w„s  held  in  seigni,„-ity  the 
e,gn,or    generally  a  noble,  had  under  him  the  ceS. 
nauts,   "halutanls"  they   ™|led   themselves:   the  habUn 
eens,ta.re     (tenant-the  words  are  not  quite  svnonvmou  "wa 
under  many  feudal  obligations,  fa.niliar  to  reader,  of  Black 
«  on.._,  ,r  e.,ample,  he  was  bound  ,„  take  his  grain  Z  be  grm,nd 
at  .ho  se,gn,or-s  „,il|,  and  to  pay  for  sueh  grinding.    I,  heTnt 

ail  the  same.  And  his  punishment  might  he  even  more  severe 
for  in  one  recorded  judgment,  a  habitant  who  took  gra  ITo 
another  mill  than  his  seignior's  was  decreed  to  forfeif  tothe 
eignior  not  only  the  grain  but  also  the  vehicle  in  ^1  t  ,« 
'■arried  If  «  habitant,  being  the  feudal  inferior  desired  to  T 
pose  o  the  land  which  he  held,  he  was  obliged  oTay  s^^ 
a  antial  part  of  the  purchase  money  to  the  sefgnior.  and  wo^' 
the  se„„,„  might  himself  take  the  land  within  forty  daya  of T' 

,10/en  of  those  caught  in  seigniorial  waters-  wnoH  .„a     . 
•nm  be  taken  from  his  land  by  the  sei^nt'.o  bu  d  or'r    ^ 
luanor-house,  church  or  mill.     Some  few  seigniors  had  airi 


Id  1854  th,.  then  Province  of  Canada  directed  the  value  of  all 
iTX  "'  ""•  «"^""-  '"  ^  """".ined  by  ,.„,„,„i„i„„;„ 
appotn  ed  l>y  the  0„vern„r,  and  „p„„  tluir  report  l>ei„«  Mle,l 
and  notiee  thereof  publi.hed  in  the  Omeial  0„,.ette,  the  habitant 

T  "'iTf  ,".,""  ''""'"•  ""■■  ''""'P'  "'"  «'"'  .'■-"■•ly  rent,  an.l 
hereatter  held  I„h  la.,d  in  /„„„:.„,.„  r„0-nV,._at  hia  option  he 
iririfiit  pay  a  lump  huiu  onee  for  all 

In  tin.  i„,tanee  .,11  the  feudal  duties  were  turned  into  „  „,o„ey 
pa       n,    ,.     .      ,ndeed  u„le»  ,|,e  „.„„„,  „„„  „  ,,„    ,  ^J 

No  me  doubta  that  whe e  Legislature  said  that  a  lun,,,  aura 

m  Kit  be  paul  mHtead  of  the  r,„h  cunMu.; ,  it  «a,  nerfe,  Mv 
vilhd  leKislntion.  '  ■ 

In  i;,e  Imperial  A.-t  of  186!<.  hy  which  the  Irish  fhnnh  «„a 
d  sestabhshd.  there  „a,  a  provision  taking  a«„v  all  ri^ht  of 
a.lvowsm,  or  power  of  appoint.nent  to  a  ,.hur,-h.  SuW,  riJl.t  be 
eoine.,  effeet.v,.  only  „,  ,.ert„in-H,r  rather  uncertain-intervals- 
hut  the  arl,a„u.nl  took  it  away  entirely  and  directed  the  former 
owner  ,t  he  applied  f„r  compensation  within  three  vears  to  be 
paid  a  Imnp  sunt  fixed  by  ,-onm,isaio„crs :  see  Frcwen  v   Prew.T 

(I810I.    I,.    |{,    1(1   Cli,   ^\||     (;,„ 

In  the  l-nited  States  it  is  said  the  Legislature  cannot  vali,i„te 
an  ,nval,d  trust  or  wilh  Hilliard  v.  Paul.  10  Pa.  81.  .m.  or  ^-ive 
latal  absolutely  to  one  who  under  the  will  received  it  und,T  a 
restraint  agra.n.t  alienation:  Spink  v.  Brown.  61   Pa    .St    ■i27- 
Alter  ,  Appeal.  67  Pa.  St.  341.    In  Ontario  .Mr,  floodhueljft  a 
per  eety  val  d  will    the  residuary  estate  ,0  acun.ulate  during 
the  I,  etuue  o   Ins  wulow.  and  directed  that  ir  any  of  his  children 
died  dunng  the  lifetime  of  the  widow,  their  c-hildren  shoul.l  take 
their  parents    share.    This  did  not  suit  the  children  of  the  de- 
cedent: fl.ey  wanted  their  share  at  once  and  thev  executed  a  deed 
"hereby  ea.-li  of  them  was  to  have  his  share  at  „nce_in  other 
«o.da  they  tried  to  take  away  the  possibility  which  the  will  ere- 
ated  in  favour  of  grandchildren.    The  Legislature  in  1871  de- 
clared the  deed  valid-and  the  court  was  forced  to  uphold  the 
ran«.ct,on:  Re  Goodhue  (1872),  19  Gr.  .366.    The  court  d!d  not 
douot  the  power  of  the   Legislature  to  pa.ss  statiues   wherein 
from  oversight  or  any  other  cause  provisions  should  be  insertd 
of  an  ob,,eet.„nable  character,  such  as  the  deprivation  of  innocent 
parties  of  actual  or  possible  interest  by  retroactive  legislation  " 


l)rain«K,.  „t  uKriculhinil  landa  aiTorw  tlir  lnnil>  of  othir.  in  a 
lakinif  of  private  property  for  private  uw  and  in  violation  of 
the  Koiirtpcnlh  Arm-nilminl :  !(.■  Tiithill,  16:1  N.  V.  l.Tl,  4!)  L.  H. 
A.  7HI.  Wp  liavc  a  whole  .erica  of  neta  nllowiuK  tliia  verv  thinir 
anil  no  Foiirteentli  Amendiiiont  atamla  in  the  way. 

Not  far  removed  from  the  right  of  property  eornea  the  right 
'o  hrinu  an  action.  It  ia  aaid  that  Congreaa  ha«  no  power  to 
protect  i)artie»  aaaiiminR  to  act  under  the  authority  of  the  central 
(Tovcrninent  diirinR  the  civil  war  hy  deprivinif  persons  who  had 
l>een  illeKally  arrcated  of  all  redreaa  in  the  courts:  Oriffln  v. 
Wilcox.  21  Ind.  .'170 ;  Johnson  v.  Jury,  44  111.  142. 

The  Act  of  ('onirress  providing  "that  any  order  of  the  Presi- 
dent  or  under  his  authority,  made  at  nnv  time  iluring  the  present 
rehellion,  shall  he  a  def-^nce  in  all  courts  to  any  action  or  prose- 
cution pending,  or  to  commence  for  any  search,  seizure,  arrest,  or 
impriaonment,  made,  done  or  committed  .  .  .  ■'  was,  ac. 
eonlingly,  held  to  he  invalid. 

In  Canada  we  have  had  statutes  of  indemnity,  e.  g.,  in  18.18, 
after  the  "Rehellion"  an  act  was  passed  (1  Vic,  e.  12)  which  re- 
cited that  before  and  during  the  "insurrection"  it  became  nec- 
essary for  Justices  of  the  IVf  e,  officers  of  the  militia  and  others 
in  authority  in  the  Province,  and  also  for  loyal  subjects,  to  ap- 
prehend p  rsons  charged  or  suspected  of  joining  in  the  insur- 
rection. Ti.e  act  then  pi.ivided  that  all  proceedings  brought  for 
such  acts  s'lould  be  void,  and  the  persons  who  had  committed 
them  indemuined-all  such  proceedings  were  to  be  stayed,  and 
If  the  plaintiffs  went  on  they  should  be  liable  for  double  costs 
No  one  had  the  slightest  idea  that  this  act  was  not  perfectly 
valid. 

So  in  Ireland,  a  similar  act  was  passed  after  the  Rehellion  of 
1798:  and  also  in  Cape  Colony  in  1836,  1847  and  185,3  •  in 
Ceylon  in  1848  ^  in  St.  Vincent  in  1862  and  in  New  Zealand  in 
1865  and  1867.  And  in  Jamaica  after  the  Rebellion  of  1865.  the 
Legislature  passed  an  act  of  indemnity  which  had  the  effect  of 
preventing  the  prosecution  of  actions  against  Governor  Eyre. 

It  is  indeed,  said  that  the  people  of  a  State,  by  amendment  of 
their  Constitution,  may  validly  take  away  rights  of  action  and 
other  rights  not  theieby  imposing  a  punishment  or  impairing  the 
obligation  of  a  contract.    This  was  done  by  the  State  of  Missouri 


17 

ond  olhi-ra:  nil  riuhl«  of  n.  tiim  fur  anytliind  cloni'  durinK  the  »»r 
hy  Federal  or  Stut"  troupii  wi'rf  takrii  uway :  Dupmin  v.  Hlii'ti'l 
41  .Mo.  1H4;  8  Wall.  645, 

Some  of  the  differro l».tw«.ii  tin-  Hvii  coiintrio  depi-nd  iipiin 

a  prinripli'  to  wtiifli  the  I'ourts  in  the  I'nlti'd  Stnten  pay  much  re 
»pect— the  principle  of  eipial  ri(jht».  Om'  judKe  exelaiiiw  "Can  it 
b«  aiippoHed  r.ir  „,„nent  that  if  the  Leifinlutiire  ahoiil.l  paw  a 
general  law  ijr  .M  a  section  by  way  of  proviso  that  it  should 
never  he  eonatrueil  to  have  any  operation  or  etTeet  upon  the 
.  .  rights,  etc.,  of  A.  L.  or  J.  O.,  aueh  a  provision  would  receive 
the  sanction  or  even  the  eountenan"e  of  a  court  of  law?"  Lcivis 
v.  Webb,  3  ,Mo.  326. 

The  nonunion  Act  of  1!I03,  3  Kdw,  VII,  c.  21,  gives  juris- 
diction to  the  K.xc-hc(iucr  Court  nf  Canada  to  order  the  side  of 
aLy  railway  at  the  instance  of  the  Mininter  of  Railways,  or  any 
creditor,  appoint  a  rcc'eiver,  etc..  but  "Sec.  8  of  this  Act  shall 
not  apply  to  or  authorize  proceedings  against  the  C.  0.  Hail- 
way    ..." 

While  in  cases  of  succession  duties  an  arbitrary  statutory  ex. 
emption  is  sustainable:  State  v.  Furncll,  3!)  L.  li.  A.  170,  if  such 
an  arbitrary  exemption  is  applied  ..iily  to  estates  lower  in  value 
while  those  which  are  larger  have  no  exemption  at  all,  this  is  void 
and  invalidates  the  whole  statute:  State  v.  Ferris,  53  Ohio  St. 
34 :  30  L.  R.  A.  218— but  this  seems  to  be  doubted  in  other  courts : 
Tennessee  and  Massachusetts,  26  L.  R.  A.  259;  28  L.  R.  A.  178. 
In  Ontario,  all  estates  under  ten  thousand  ilollars  are  absolutely 
exempt— as  are  all  passing  to  certain  relatives  under  one  hundred 
thousand  dollars — and  the  larger  ones  have  no  exemption. 

A  statute  of  a  State  providing  for  service  upon  the  agent  of  a 
non-resident  doing  business  in  the  State  has  been  held  to  be  void  : 
Cabanne  v.  Grtf,  92  N.  W.  461.  In  Ontario,  every  non-provincial 
company  before  procuring  a  license  nuist  have  an  agent  within 
Ontario  upon  whom  service  may  be  made :  and  every  person  who 
within  Ontario  transacts  or  carries  on  any  of  the  business  or  any 
business  for  any  corporation  whose  chief  place  of  business  is 
without  Ontario,  shall  for  the  purpose  of  being  served  "with 
writ  of  summons"  be  deemed  the  agent  thereof:  Con.  Rule  159 
(b). 
A  statute  attempting  to  restrict  the  right  of  banki.      'i 


IKPralion.  it  Iwd :  HUtc  v.  Scungal,  15  L.  H.  A.  474 ,  44  Am.  81. 
T.'ili.  althiiiiKli  upparently  tlir  rentri.tion  i>  (To'mI  if  thi'  huiincM 
!»•  iiiHiirmii-.',  at  leant  in  I'piiM.vlvania :  Coiiitnou»i'«;tli  v.  Vroo- 
rimu.  Iti4  Pa.  .lUB^  ur.  I..  II.  A.  'iM.  Uy  the  Hominion  Act,  K.  8. 
C.  ( l!H)8i  f.  ail,  Seen.,  156,  157,  it  in  provided  tliat  every  one  who 
uw»  or  amiiruei  tlie  title  nt  "hank",  "liankinu  cmnpany", 
"liaukinK  lii>iiw  ',  "hankinu  a<Mi«iatiim".  (ir  "hankinn  in«titu- 

•'"""  »'•' I  '"■">>{  aiithori/.'d  to  do  no  Ja  (fiiill-  of  an  offence 

nnderinK  m  lialile  to  a  line  of  one  thouiiand  dolliira,  or  iin- 
(iiiwiniiiei,  r  live  ,vi'ar».  or  iiotli.  And  only  in.-orporaled  cora- 
paniea  are  eliuiWe  for  autliorization. 

In  tile  I'liiied  Stales,  it  weriiK  tlial  an  aet  rei|uiring  penoni 
piiyinii  U-M  ilian  IwcntyHve  dollam  in  taxes  to  pay  a  liecna.-  fee 
»ill  !„•  li,.|d  l,a,l ;  State  v.  .Mileliell,  .Vl  Atl.  K(*7.  And  a  reifulation 
limiting  to  tranaientu  only  requirement  of  a  li.'enae  ia  e(piall> 

"' ■'<i'i"«  ' Iioility;  .Medriiml  v.  .Marion.  !W  Ky.  U7:l;  Kinaely 

V.  ColtiT.-l,  liifi  I'a,  St.  614.     Hut  aueh  reifulationa  are  of  daily 

I urren.'e  in  Callaila. 

An  ^Hi  providini.'  for  raisinn  uioney  to  pay  liountiea  to  private 
producers  of  lieet  suRar  is  invalid :  .Mic'hiKan  Snxar  (.'o.  v.  Audi- 
tor Oeneral,  124  .Miili  674.  We  nn;il  this  year  paid  Imunties  to 
private  produeera  of  steel,  piifiron.  ct,\— and  bounties  to  private 
piodueera  of  heet  suKiir  are  not  unknown. 

No  I'ity,  it  is  said,  eau  he  alloivi'd  to  raise  taxes  with  which  to 
niil  uiannfai-turinK  eswihlishments:  I'arkershurg  v.  Brown,  106 
r.  S.  687:  Cole  v.  Im  Grange,  113  U.  h,.  1.  We  do  it  every  day 
and  in  nuiat,  if  not  all.  of  the  cities  and  in  many  of  the  towns 
anil  even  villages  of  Ontario. 

In  tile  t'nitr  I  States  it  is  decided  that  ta.xes  must  be  for  a 
[lublie  purpose  and  while  the  support  of  a  State  I'nivi'rsity  is  a 
piihlie  pur|>ose.  the  iTi'ation  of  free  scholarships  and  allow'ances 
to  needy  students  is  not,  even  though  these  should  he  granted 
after  public  and  competitive  examination:  State  v.  Switzer.  143 
Jld.  287.    We  would  have  no  diffleidty  in  such  a  case. 

In  Illinois  and  New  Hampshire  it  seems  that  owners  of  prop- 
eity  cannot  he  eooipclh.il  to  keep  the  8idc'.v;dl;  opposite  their 
property  clear  of  .snow;  Cridley  v.  lilooioincton,  88  III.  .1.54. 
State  v.  Jackiuau,  6!)  N.  II.  318;  44  Pa.  438.  But  in  Toronto 
many  a  citizen  has  found  his  way  to  the  police  court  because  he 
has  neglected  to  obey  an  ordinance  to  that  effect. 


A  niilro»il  ii|i|>iirciilly  i>anni)t.  with  .vi.u.  Ih'  iniili'  liahh'  for 

•toi'k  killnl  hy  it  In  tln'  »liiM'n(i'  of  niirliii.'iii n  ita  part.    .I.tivin 

V.  Union  l>«e.  H.  Co..  i\  I'li,  Id-p.  <m.  H.v  ..irr  liiiilwii.v  Ai'l. 
•«■.  2»4  (4),  when  any  ato.'!!  at  lanie,  whether  upon  the  hilthway 
or  not.  iietii  iipoii  thi>  propi.rtv  of  the  niilwiiv  iiml  in  Icillnl  or 
injured  hy  a  train,  the  railway  oiiiat  pay  ■  .ihw  tli  y  pnive  that 
the  atoek  got  at  large  throiiuh  the  neiflinenee  of  the  owner.  .\n(l 
•ec.  298  providea  tliat  thi'  conipuny  mint  piiy  for  daoiane  to 
cropa,  etc.  eauaed  hy  fire.  nc(tli(fenee  or  no  neuiiuenie.  Not 
wholly  diwimilar  legialation  haa  heen  paaaed  in  several  Stntei. 
and  apparently  hi'M  Kood.  Kraaer  v.  I'l-re  M.iniuette  (PKIfii. 
18  O.  L.  R.  .WD.  And  nlao  in  the  ea«e  of  tiii«Nin)fer»  unil  itimiU. 
Chieajto,  4e..  v,  yernoeke.  82  N.  W.  26. 

Some  differenoea  depeml  upon  the  hypothesis  that  the  Leifia- 
lature  ia  an  agent.  iHriialut:  and  of  ■oiirse.  Ilentharri  or  ii.i 
Bentham.  drhijalua  mill  piilest  ilHrijari  Kor  example,  a  State 
i..-giBlaturc  eannot  aiitl'orize  u  Imard  of  health  to  iriiike  general 
rules:  State  v,  Bunlge.  !)ij  Wis.  :t!K).  Nor  enn  it  leave  to  an 
offleial  finally  to  determine  what  shall  he  done  to  rrinlii'  fnetoriea 
and  workshops  sanitary:  Sehaezlein  v.  Calpiniss.  i;!.'i  Cal.  466, 
or  the  extent  of  expropriation  for  waterworks:  Stearns  v  Bane 
7.3  Vt.  281. 

In  the  Canadian  "eonstitntion".  I»«.  lianient  and  Legislatures 
are  not  eonsidered  ••ilrlri/alui"  at  all.  Not  even  delegates  of 
the  Imperial  Parlia.iient  at  Westminster,  from  whose  statute  the 
Canadian  Legislative  hodies  derive  their  powers— the  highest 
court  in  the  Empire  haa  sa'd  "They  are  in  no  sense  delegates  of 
or  aeting  under  any  mandate  from  the  Imperial  Parliament  . 
.  .  the  Provincial  Legislature  having  ....  the  author- 
ity to  impose  imprisonment  with  or  without  hard  Inlwiur.  had 
also  power  to  delegate  similar  authority  to  thn  liody  wnieh  it 
created  called  the  License  Commissioners.  ,  .  .  "  Hoilge  v. 
The  Queen.  188:!,  I)  A.  C.  at  pp.  i:!2.  l.t:).  l:tl.  -It  was  ar- 
gued at  the  har  that  a  Legislature  committing  important 
regulations  to  ageufs  and  delegates,  cffaies  itself.  That  is  not 
so.  It  retains  its  powers  intact,  and  can.  whenever  it  pleases, 
destroy  the  agency  it  has  created  and  set  up  anrher.  or 
take  the  matter  into  its  own  hande.  How  far  it  shaM  seek  thi< 
aid  of  subordinate  agencies,  and  how  long  it  shall  continue  them. 


are  matters  for  each  legislature  and  not  for  courts  of  law  to  de- 
termine", ibid,  p.  132.  In  faet  it  may  be  said  generally  that  any- 
thing a  Legislature  can  do  itself,  it  can  depute  to  another  sub- 
ordinate body  to  do.  1  consequently  do  not  give  particular 
instances  or  further  pursue  this  subject. 

Where  courts  have  given  an  interpretation  to  the  words  of  a 
statute,  it  is  not  open  to  the  Legislature  to  put  another  construc- 
tion upon  these  words  so  as  to  have  a  retroactive  efifect :  Green- 
ough  V.  Greenough,  1\  Pa.  St.  489.  No  such  limitation  of  the 
power  of  Parliament  or  Legislature  is  thought  of  in  Canada. 
.Moreover  there  are  many  sta»ut?s  (e.  g.,  in  insurance)  which  are 
expressly  made  applicable  not  only  to  future  but  also  to  existing 
contracts. 

The  Legislatures  in  tlic  United  States  cannot  validly  provide 
that  cases  pending  in  tlie  Court  under  an  existing  law  shall  be 
dismissed :  State  v.  Adam.s,  44  Mo.  570.  In  1909  the  Legislature 
of  the  Province  of  Ontario  passed  a  statute,  9  Edw.  VII,  c.  19, 
which  by  see.  8  provided  that  every  action  theretofore  brought 
wherein  the  validity  of  a  certain  contract  or  any  by-law  passed 
or  purporting  to  be  passed,  authorizing  its  execution  by  a  mun'e- 
ipal  corporation,  was  attacked  should  be  "forever  stayed."  One 
of  such  actions  came  on  for  trial  before  me— the  evidence  had 
been  taken  before  the  passing  of  the  act  but  decision  not  yet 
given  when  the  act  was  passed.  I  said  (Smith  v.  London  (1909), 
20  0.  L.  li.  at  p.  142)  "This  action  it  is  plain  comes  within  the 
letter  as  well  as  the  spirit  of  this  sec.  8.  The  Legislature  has  said 
that  this  action  shall  be  stayed.  Jly  duty  is  'loyally  to  obey  the 
order  of  the  Legislature, '  the  action  is  accordingly  stayed. 

"While  the  wording  of  the  statute  is  that  the  action  shall  be 
'forever  stayed',  the  Legislature  has  no  power  to  control  by 
anticipation  the  actions  of  any  future  Legislature  or  of  itself;  it 
may  be  that  this  legislation  may  be  repealed  ....  the  re- 
sult is  that  the  stay  ordered  by  the  statute  has  the  effect  of  caus- 
ing the  court  to  retain  the  action  with  no  proceedings  to  be 
taken  therein  unless  and  until  the  legislation  is  in  some  way 
got  rid  of . " 

This  decision  was  affirmed  on  appeal,  an  appeal  hopeless  from 
the  very  first. 

We  may  go  even  further  and  say  with  perfect  confidence  that 


a  Provincial  Legislature  may,  in  matters  of  private  rights,  oust 
the  court  altogether  and  make  it  a  mere  roi  faineant  in  that 
regard. 

"It  is  not  in  my  judgment  doubtful  that  the  Legislature  of 
the  Province  has  the  power  to  say  that  any  question  respecting 
property  or  civil  rights  shall  be  decided  in  any  way  the  Legisla- 
tH.-e  shall  see  fit  ...  .  that  the  L,.gislature  has  si.pre.ne  power 
within  the  limits  of  subjects  allotted  to  it  to  pass  such  legislation 
as  It  sees  ht  and  such  legislation  must  he  given  effect  to  by  this 
and  every  other  court.  And  if  the  Legislature  has  in  fact  said 
that  the  true  boundary  between  the  two  adjoining  hits  is  to  he 
determined  by  three  farmers  or  by  a  land  survevor,  it  is  my  duty 
loyally  to  obey  the  Legislature  and  to  stav  mv  hand-  the  Legis 
lature  has  the  legal  power-and  that  is  all  1  iiiav  concern  myself 
about-to  say  that  His  Majesty's  Court  shall  not  determine  the 
property  rights  of  His  llajesty's  subjects  ....  but  that 
such  are  to  be  determined  by  some  other  tribunal  or  by  some 
person  named."  Relamatter  v.  Hrown  (IWW)  !,■)  o  \\'  ij  i-,g 
at  pp.  62,  63.  ..... 

In  the  ease  of  Smith  v.  London  it  was  held  that  the  Le.»islature 
might  declare  a  contract  valid  which  theretofore  had  been  invalid 
And  this  method  is  frequently  resorted  to.  A  municipality  has 
passed  by-laws  granting  a  bonus  to  a  railroad  or  other  enterprise 
perhap  issued  bonds  for  the  amount  of  the  bonus:  some  question 
arises  as  to  the  legality  of  by-law  or  bond  issue.  An  act  is  pro- 
cured from  the  Legislature,  and  thereafter  no  one  can  set  up 
illegality  in  what  the  Legislature  have  declared  legal. 

The  boy  said  "What  mother  says  is  so.  if  it  isn't  so".  We 
say  "What  the  Legislature  say  is  legal,  is  legal  if  it  isn't  legal  " 
An  order  to  State  officers  not  to  engage  in  polities  and  not  to 
make  public  speeches  is  void.  Lomhan  v.  Conn.  79  Va  196 
Our  Canadian  practice  is  to  continue  a  man  in  public  office  for 
lite,  but  it  he  engages  in  politics  or  makes  public  speeches,  he  is 
dismissed,  at  least  when  the  other  party  come  into  power-and 
DO  one  doubts  that  such  an  order  as  has  been  held  void  in  the 
United  States  is  perfectly  valid  with  us. 

Then  as  to  the  Dominion  and  Provincial  Courts.  The  con- 
struction  put  upon  the  statutes  of  a  State  by  the  State  courts  is 
generally  followed  by  the  Supreme  Court  of  the  United  States 


The  Supreme  Court  of  Canada  does  not  consider  itself  at  all 
bound  hy  the  Provineial  Courts.  In  a  case  tried  by  myself  in 
which  I  gave  judgment  for  the  plaintiff,  the  whole  question  was 
one  of  the  interpretation  of  an  Ontario  statute— the  Court  of 
Appeal  for  Ontario  sustained  my  judguient.  In  the  Supreme 
Court,  the  two  judges  who  had  come  from  Ontario  agreed  in 
that  interpretation,  but  three  judges — one  from  Quebec,  one 
from  Prince  Edward  Island  and  one  from  British  Columbia — 
took  another  view,  and  the  appeal  was  allowed.  The  Judicial 
Committee,  indeed,  restored  the  original  judgment:  Thompson 
V.  Equity  Ins.  Co.  { 1(110 1,  A.  C.  X)2:  (190»).  41  Can.  S.  C. 
U.  491. 

But  I  think  I  have  given  sufficient  instances  now  to  illustrate 
the  radical  difference  in  many  respects  of  the  two  Constitutions. 

I.  In  the  United  States  the  President  and  the  Governors  of 
the  States  (speaking  generally)  have  as  much  power  as  George 
III,  and  in  some  resp.  ts  more — the  Governor-General  and  the 
Lieutenant-Governors,  less  than  George  V. 

n.  Times  and  seasons  are  set  in  the  United  States  for  change 
of  legislation,  none  in  Canada. 

III.  The  Government  of  the  United  States  can  claim  no  pow- 
ers which  are  not  granted  by  the  Constitution — it  is  a  govern- 
ment of  enumerated  powers :  the  Dominion  of  Canada  has  all  the 
powers  not  granted  to  the  Provinces. 

IV.  The  Constitution  of  the  United  States  contains  a  hard 
and  fast  standard  set  by  people  of  one  generation  for  their  suc- 
cessors ;  that  of  Canada  may  be  changed  in  a  day :  Liitera  scripts 
manet. 

V.  In  the  United  States 

Thp  Moving  Finger  writes,  and,  having  writ 
Moves  on :  nor  all  your  Piety  nor  Wit 
Shail  lure  it  baclc  to  cancel  half  a  line. 
Nor  all  your  tears  waab  out  a  word  of  it. 


( Perhaps  you  would  prefer  the  Latin  version — here  it  is 

It  digitus,  cerae  seribuntur,  scriptaque  durat 

littera :   tu  sapiens  sis  licet  atque  pius 
"dimidium  dele''  frustra  obtestabere  "versum", 
non  fiet  lacrimis  ulla  litura  tuis.) 


No  interprptation  by  the  courts  of  the  meaning  of  the  words 
of  the  statutes,  can  the  Legislature  correct :  no  contract  created 
by  legislation,  however  unwise,  can  be  cancelled :  no  grant,  how- 
ever improvident,  can  be  recalled :  no  action  based  upon  existing 
law  can  be  stayed  or  dismissed :  no  gain,  however  ill-gotten,  can 
be  taken  away  from  one  who  obtained  it  by  legal  means  however 
scaly:  no  college  can  be  brought  under  such  governance  as  the 
whole  State  may  desire  and  perhaps  need,  if  it  can  appeal  to 
some  old  charier  or  grant. 

In  the  United  States  the  courts  are  supreme:  in  Canada, 
the  people  through  their  representatives — in  the  one  country  a 
few  men  say  to  tl  e  legislatiiii;  bodies,  "Thus  far  shall  thou  go 
and  no  further'  ,  in  the  other  the  legislating  bodies  say  to  the 
courts,  "'Thus  far  and  thus  shalt  thou  go  and  no  furtlu-r  or 
otherwise." 

In  the  United  States,  half  a  dozen  men  sitting  up  in  a  little 
cock-loft  can  paralyze  the  activity  of  a  Senate  and  House — may 
say  tliat  a  measure  imperatively  palled  for  in  the  public  interests 
cannot  be  validly  enacted;  and  the  legislators,  the  people,  are 
helpless — that  is  called  Republicanism,  democratic  government; 
and  there  is  searching  of  soul  and  shaking  of  heads,  if  not  gnash- 
ing of  teeth,  when  anyone  suggests  that  the  people  be  asked  if 
that  little  coterie  have  correctly  interpreted  the  popular  will 
formerly  and  formally  expressed  in  a  State  Constitution.  In 
Canada  sliould  the  court  fail  to  apprehend  the  real  intention  of 
an  enactment,  any  government  which  can  command  the  support 
of  the  people  can  correct  the  error. 

Taley.  when  speaking  of  a  view  held  by  some  of  the  Constitu- 
tion of  England,  says  "These  points  tc  wont  to  be  approached 
with  a  kind  of  awe:  they  are  rep:  jted  to  the  mind  as  prin- 
ciples of  the  constitution,  settled  by  our  ancestors,  and  being 
settled  to  be  no  more  committed  to  innovation  or  debate,  as  foun- 
dations never  to  be  stirred,  as  the  terras  and  conditions  of  the 
social  compact  to  which  every  citizen  of  the  State  has  engaged 
his  fidelity  by  virtue  of  a  promise  which  he  cannot  now  recall." 
Is  not  that  the  point  of  view,  the  feeling  of  the  Ameriean? 
Paley  adds  '"Such  reasons  have  no  place  in  our  system." 

The  framers  of  the  Constitution  of  the  United  States  have 
used  every  endeavor  to  ward  off  what  they  consider  the  worst 


of  all  governments,  an  unbalanced  democracy  which  h  supposed 
to  be  necessarily  pregnant  with  a  deiuocratical  tyranny  (1  use 
the  words  of  Erskine)  thinking  (to  use  the  words  of  Wke) 
that  the  people  being  ignorant  and  always  discontented,  to  lav 
the  foundation  of  governineut  in  the  unsteady  opinion  and  un- 
certain  humour  of  the  people,  is  to  expose  it  to  certain  ruin  " 
It  IS  m  the  power  of  the  people  to  change  the  constitution  in- 
deed,  but  not  at  once-and  the  -sober  second  thought''  is  what 
IS  so  otten  spoken  of  „ud  appealed  to.  Is  it  alwavs  certain  that 
the  hrst  thought  is  wrong:  and  the  second  thought  right? 

With  Hurke  I  say  ■■It  you  ask  me  what  a  free  government  is 
I  answer.  That  it  is  what  the  people  think  so.  and  that  thev  and 
not  I  are  the  natural,  lawful  and  competent  ,iu<lges  of  this  mat- 
ter. '    And  so  I  leave  it. 

No  doubt  the  citizens  of  this  Hepubli-  will  sav-wl,„t  a  barlmr- 
ous  country  is  Canada!  the  courts  are  not  secure  in  their  juris- 
diction,  the  interpretation  put  upon  statutes  by  the  court  rmiv  be 
reversed  by  the  Legislature,  any  man  may  be  deprived  of  his 
property  without  due  cours..  of  law-why  even  a  legislator  after 
he  has  been  elected  docs  not  know  how  long  he  mav  continue 
such.  Surely  property  must  be  insecure,  enterprise  and  industrv 
at  a  discount,  the  courts  an  object  of  contempt,  the  Government 
an  object  of  awe  not  unmi.xed  with  terror! !  What  a  country  for 
a  white  man  to  live  in ! 

So  a  Canadian  who  did  not  happen  to  know  better  might  ex- 
claim, Why,  whafs  the  use  of  a  Senate  and  House  of  Represen- 
tatives or  House  of  Assembly,  when  their  hands  are  tied  bv  the 
toter  which  killeth,  when  they  cannot  even  "boss'-  a  cmirt? 
What  kind  of  a  country  is  it  where  no  matter  how  offensive  and 
discreditable  a  government  may  be  .vou  cannot  get  rid  of  it  till  a 
time  fixed  beyond  control  1  What  a  paper-governed,  court-ridden 
country!! 

And  yet,  have  we  not  here  an  illustration  of  the  saving  "It  is 
not  so  much  the  form  of  a  constitution  as  the  spirit  in  which 
government  is  carried  on,  not  so  much  the  law  as  the  men  who 
administer  it,  which  count"? 

In  your  land  as  in  mine  the  government  and  legislators  re- 
spond pretty  well  to  public  sentiment-a  little  more  quieklv  a 
little  more  slowly-both  lands  get  the  government  thev  desen-e 
At  odd  times  the  courts  will  with  you  check  for  a  whil,  useful 


legislati.)!!,  hut  it  gets  enaetpd  at  last  siiiiii'  way  or  another.  A 
lawyer  trained  in  the  interpretation  of  ninstituti.ms— the  ■■I'hil- 
adelphiii  lawyer"  of  proverliial  note— ean  see  inueh  difference 
between  'tweedledum  and  tweedledi'e ". 

A  hair  porelittDce  (iivi.lcs  tlie  fiilst-  loi.l  true. 

Yes;  und  a  Binglo  Alif  in  tli.'  olue — 
Tlipy'rr  sure  to  fill<t  it--tii  (liitilu-timi  ilt'iir 

.\inl  peraihenture  to  rpvoMjil  too. 

as  Omar  does  ml  say.  And  a  rtiethnd  ean  alway.s  he  found  with- 
out ifivini;  the  eoiirt  or  the  Constituti(Ui  too  eruel  a  jolt  for 
givinp  the  |)eople  what  they  really  ile]iiand  and  insist  upon. 

In  Canaila  nobody  is  at  all  afraid  that  his  proper.y  will  he 
taken  from  liiiTi;  it  never  is.  in  tlii'  ordinary  i-ase.  Our  people 
are  honest  as  peoples  jro,  and  would  not  for  a  moment  support  a 
g'.itrnment  which  did  actually  steal — a  new  government  woidil 
hr  voted  into  power  and  the  wrong  righted.  We  will  not  submit 
to  have  our  great  public  works  ilelayed  by  cranks  or  the  litigious, 
but  even  a  crank  or  litigious  person  must  be  paid  a  full  price 
for  his  property — our  courts  I  venture  to  think  are  as  much 
respected— (excluding   myself)    are   as   worthy   of   respect- as 

those  of  any  ntry  in  the  world:  many  of  our  hest  men,  men 

of  high  type,  .seek  election  to  the  House  of  Comnmns  and  the 
Legislatures— and  if  any  government  in  the  United  States  could 
be  treated  to  more  railing  accusations  and  witli  more  contempt 
than  Canadian  governments  are  by  tlieir  political  opponents.  I 
should  marvel  at  it.  An  American  feels  hitnself  at  home  at  once 
in  Canada,  a  Canadian  crossing  the  border  does  not  feel  that  he 
is  entering  a  foreign  or  a  strange  land— neither  can  notice  any 
difference  in  the  law  any  more  than  in  the  language  or  in  the 
habits  of  the  people.  Once  he  escapes  the  custom-house  either 
feels  himself  a  native— unless  he  is  a  fool  either  by  nature  or 
through  misplaced  or  spurious  patriotism. 

Indeed,  we  are  in  all  but  the  accident  of  political  allegiance, 
one  people.  True  the  Union  Jack  and  Old  Glory  have  the  colours 
red,  white,  and  blue  differently  arranged— hut  they  are  the  same 
red,  white,  and  blue. 

Of  prociouB  blood  its  red  ia  dyed 

The  white  is  honour  'b  sign 
Through  weal  or  ruth  its  blue  ia  truth, 

Its  might  the  power  divine. 


All  we  are  of  the  same  blood,  our  aim.  are  the  Mme,  juitiee  to 
all  under  the  law,  good  will  to  all  men,  peace  and  righteoumeM. 
With  theae  aima  in  common  we  are  working  and  ahall  work  out 
our  deatiny  side  by  ude  and  in  much  thr  «ame  way,  an  example 
and  a  blessing  to  humanity. 


